More than $500,000 spent on Tempura report, retrieval

The cost of unearthing government documents related to the ill-fated Operation Tempura corruption investigation is growing daily and has now topped $500,000 in relation to just one complaint filed by the operation’s former senior officer.

The evaluation of the complaint filed by Martin Bridger, conducted by a London-based Queen’s Counsel, cost about $335,000. Former Information Commissioner Jennifer Dilbert ordered that document, along with Mr. Bridger’s initial complaint over Tempura, made public, but her order was blocked by the governor’s office, which challenged it in a judicial review before the Grand Court.

The cost of litigating that challenge, which is still not ended, came to nearly $175,000 for the Information Commissioner’s Office alone between February 2013 and January 2014. That amount included various services performed by the Broadhurst law firm, assisted by an attorney from Blackstone Chambers in the U.K.

Still unknown is what the Cayman Islands Attorney General’s Office paid to the Walkers law firm for its representation in the same court dispute. That amount is the subject of an open records request filed by the Caymanian Compass.

Given that some of the issues surrounding the court challenge were sent back to the information commissioner for further consideration by presiding judge Sir Alan Moses, it is at least possible that the cost of fighting Mrs. Dilbert’s original order could exceed the cost of producing the initial review of Mr. Bridger’s complaint.

Mr. Bridger has steadfastly refused to release either his own complaint or the evaluation of it by Benjamin Aina, QC, due to legal reasons.

The retired U.K. lawman spent nearly two years in the Cayman Islands, and an estimated $10 million, seeking to determine a number of allegations of wrongdoing, mainly related to the Royal Cayman Islands Police Service, but into which a member of the local judiciary was eventually dragged. The initial investigations ended in late 2009 with no criminal convictions following two separate criminal trials.

The complaint

Mr. Bridger’s complaint, which was filed by his former business partner and one-time Operation Tempura legal adviser Martin Polaine, names Chief Justice Anthony Smellie, Grand Court Justice Alex Henderson and Grand Court Justice Sir Peter Cresswell, according to court records. The specifics of each justice’s alleged wrongdoing have never been made public and were all dismissed by former Cayman Islands governor Duncan Taylor.

Publication of claims already discountenanced by the governor “would be likely to give public currency to the unmerited allegations they contain, rather than to clarify the position or promote greater public understanding of [the governor’s] decision,” according to the governor’s argument before the Grand Court.

Mr. Justice Moses summarized the governor’s office claims this way: “Raking over the coals of summarily dismissed allegations would … only revive unfounded and malign attempts to undermine public confidence in the judiciary.”

Arguing for the release of the complaint and subsequent evaluation of it, Mrs. Dilbert said more harm was being done to the entire territory by not releasing Mr. Bridger’s complaint.

“The continuing secrecy surrounding Operation Tempura, [a related investigation Operation] Cealt coupled with evidence that both investigations achieved absolutely nothing, is doing immeasurable harm to the reputation of the Cayman Islands and public confidence in the police and the [U.K.] Foreign and Commonwealth Office,” she wrote.

Disclosure of the Bridger complaint and the evaluation of it would document reasons for the governor’s decision to dismiss the complaint, Mrs. Dilbert said. She also noted that disclosure would provide “accountability of government” for the more than $300,000 spent on the evaluation of Mr. Bridger’s complaint by the governor’s office.

“Disclosure would help to preserve the reputations of the judiciary and other government institutions,” Mrs. Dilbert concluded.

FOI matters

The court challenge has also raised a major unresolved question with the Cayman Islands Freedom of Information Law.

Mr. Justice Moses asked the Information Commissioner’s Office to go back and review its decision, specifically seeking to clarify whether the release of the complaint “would otherwise prejudice, or would be likely to prejudice, the effective conduct of public affairs.” Prejudicing the conduct of public affairs is one of the reasons a government agency can give for withholding a record sought under Cayman’s FOI Law.

The exemption in the law, which has never been clearly defined, has sometimes been used by government entities seeking to place a blanket exemption on the release of what would otherwise be public records.

In the case before the Cayman Islands Grand Court, the governor’s office argued that publication of Mr. Bridger’s complaint would damage public confidence in the administration of justice.

“The effective administration of justice requires that the public have confidence in the integrity and independence of the men and women who serve within the judiciary,” former governor’s aide Tom Hines wrote in the office’s argument against the release of Mr. Bridger’s complaint. “It also requires that this confidence is not eroded by unmerited or unfounded allegations made against them.”

This is the essence of the argument Mr. Justice Moses asked the information commissioner and other interested parties to work out in a subsequent appeal hearing. “I hope I have identified the important issues which fall to be decided without indicating where I believe the balance should be struck,” Mr. Justice Moses wrote. “If others think I have nudged the commissioner one way or the other, they are mistaken.”

1 COMMENT

To put this expenditure in context – I have taken two FOI appeals to tribunal in the UK and my total costs for both ran to the equivalent of less than FIFTY CI.

There are more comments on this posted under today’s Editorial but just for the record I, as the original applicant and appellant, pulled out of this in March last year because it was obvious that the case being presented by the ICO was incomplete and fatally flawed.

My concerns at the time, which have sadly been proved correct, were not only completely ignored but were, in my opinion, subsequently fully supported in Sir Alan Moses ruling.

It seems to me this is just the latest in Tempura’s sad history of instances where public money has been handed over to private entities without any tangible benefit or result.